The historic 2015 Regular Legislative Session was adjourned sine die on Wednesday afternoon, following approval of the budget. This year’s Session was truly historic with Republican leadership for the first time in more than 80 years and the first time that party had led in our current Capitol Building. It was further notable for the unusually high number of bills passed that were positive to our members as well as businesses and industries across the state.
Here is a summary of the bills that are important to our industry and our people. You may click the bill number to obtain a copy of the most recent version available for the particular bill. Some of these bills have already been signed by the Governor. For those that passed in the last days of the Session, the bills will be printed and forwarded to the Governor for his consideration. Since the Session has adjourned, the Governor has fifteen days, excluding Sundays and holidays, to act on the passed legislation or it automatically becomes law. He had five days to act while they are in Session.
SB 357 – “The Coal Jobs and Safety Act of 2015” contained the mine safety and the environmental issues of our original legislative program. This bill represents major enhancements that will strengthen West Virginia’s mine safety and environmental laws by being more reflective of actual conditions and practices in today’s modern coal mines and will bring us more in line with the federal laws and regulations, as well as with the laws/regulations/practices in other coal producing states. Governor Tomblin signed this bill on March 12, 2015 and it takes effect 90 days from passage, which translates to June 1, 2015. The five mine safety provisions and six environmental provisions contained in the bill are summarized below.
Safety Provisions
Equalize Drug Testing Standards- Strengthens the drug testing program for all miners by removing the preferential treatment for miners under a collective bargaining agreement that was contained in the existing law.
Movement of Mining Equipment Underground- Changes current West Virginia law by permitting equipment to be moved with men inby, as long as there is no energized trolley wire in the immediate area. Existing law prohibited the movement of mining equipment, except for sectional moves, with men inby, even though the federal law allows for equipment moves with men inby, even where energized trolley wire exists. Senate Concurrent Resolution (SCR) 63 was also passed that urged the Board of Coal Mine Health & Safety to review, assess and develop specific rules for the movement of mining equipment and in consultation with the Director of the Office of Miners’ Health, Safety & Training develop and enact these rules by June 2, 2015.
Track Maintenance- For mines that transport miners exclusively by track, changes the law to provide that track is no more than 1,500 feet from the face. Also, provides that two self-propelled vehicles be readily available on each section and capable of transporting miners in case of an emergency.
Sideboards on Shuttle Cars- Allows the use of sideboards on shuttle cars if equipped with cameras. Further, the director of the OMHS&T must give approval for manufacturer-specified sideboards without the use of cameras.
Terminates Diesel Commission- Eliminates the six-member diesel commission and places the testing, review and approval of diesel equipment in the hands of the OMHS&T, which currently does the inspection and final approvals before deployment.
Environmental Provisions
Requires DEP to propose an emergency rule that changes state Aluminum criteria to hardness-based standard - The harder the water in the stream the less effect aluminum has on aquatic life. WV DEP proposed this very change last year. VA and KY have no aluminum limits and PA just has an acute limit.
Requires DEP to propose new contemporaneous reclamation rules to more closely match the federal rules.
Requires DEP to propose new inactive status rules to more closely match the federal rules. Current WV rules put a 3-year limit on inactive status, then reclamationmust begin, while there is no time limit under federal rule.
Allows for additional methods to be used for refuse impoundment construction, i.e., allowing the use of caps and liners similar to the ones used for landfills.
Penalty Conformity legally aligns the state penalty process for NPDES permits to that of EPA.
Permit as a shield language will now be in state law that DEP has placed in their water quality standard regulations. It will treat coal mining NPDES permits as every other industrial NPDES permit, meaning compliance with those standards/parameters specifically named in the permit.
HB 2011—(Legal reform) -- Made a number of favorable changes to the “deliberate intent” statute, including:
· A clarification that “actual knowledge” of an alleged unsafe work condition must be proven;
· By defining “serious injury” as a permanent injury that results in a whole-person impairment award of at least 13% and meets a tight narrative standard;
· A clarification of a previous Supreme Court’s decision, in Ryan v. Clonch Industries, by stipulating the employer can be held liable for deliberate intent only when it can be proven the employer deliberately and intentionally failed to conduct a mandatory inspection that was specifically intended to identify each alleged unsafe working condition; and,
· Strengthening drug-free employment initiatives.
· Bill passed March 14, 2015 (last day) and is being prepared for the Governor.
HB 2627 -- Provides increased protections against property crimes committed against coal mines, utilities and other industrial facilities. Bill passed March 14, 2015 (last day) and is being prepared for the Governor.
SB 423 -- Amendments to last year’s comprehensive “aboveground storage tank” bill to reduce the number of tanks affected and make the program more manageable. Bill passed March 14, 2015 (last day) and will be in effect 90 days from passage. Contact Jason Bostic at the Association (jbostic@wvcoal.com) for a detailed summary of all provisions of this amended bill.
HB 2001 -- Repealed the Alternative and Renewable Portfolio Standard—Approved by the Governor on February 3rd and the bill is in effect from passage which was January 27, 2015.
HB 2004 -- The Legislation provides a procedure and legislative approval for WV DEP’s plan to frame the State’s Implementation Plan (SIP) submission to EPA for their carbon dioxide mandates for existing power plants, pursuant to 111(d) of the Clean Air Act. Approved by the Governor on March 3rd and the bill is in effect from passage which was February 19, 2015.
SB 502 – Established a date certain for the eligibility for the special reclamation tax credit. Bill passed March 12, 2015 and will be in effect 90 days from passage. Pending in Governor’s Office.
HB 2283 – DEP rules bill that included a provision that mandates DEP to study Category A (drinking water classification) for all streams and report in their triennial review as to the appropriateness of that classification based on several physical factors. Also reclassifies a large portion of the Kanawha River as Category A and includes revisions to the state’s Coal Mining NPDES Rules (47 CSR 30) to address the “permit as a shield” language. This bill is in effect from passage, March 12, 2015.
SB 578 -- Authorizes indemnity settlements for OP (Black Lung) claims. Bill passed March 10, 2015 and will be in effect 90 days from passage. Pending in Governor’s Office
HB 2016 – Page 90 of the approved Budget Bill provides: “Included in the appropriation for West Virginia University (fund 0344, appropriation 45900) is … $836,400 for the College of Engineering and Mineral Resources for the WVU Coal and Energy Research Bureau, the Mining Engineering Program, and the Petroleum Engineering Program;...” Bill passed March 18, 2015 and is pending in the Governor’s Office.
Although these bills did not reach passage, they will become the point of reference for studies, evaluations and reviews during the year with action anticipated in the 2016 Regular Session.
HB 2910 – Additional mine safety issues; and, HB 2675 – reduced the additional (excess) severance tax.
Legal Reform Issues:
SB 3 -- Relating to real property possessor's liability for trespasser harm. Bill passed January 29, 2015, was approve by the Governor on February 9, 2015 and will be in effect 90 days from passage.
SB 13 – Reinstates the “open and obvious doctrine” for premises liability. Bill passed February 18, 2015, was approved by the Governor on March 3, 2015 and is in effect from passage.
SB 421-- Relating to punitive damages in civil actions. Bill passed March 10, 2015 and will be in effect 90 days from passage. Pending in Governor’s Office.
HB 2002 -- Predicating actions for damages upon principles of comparative fault. Bill passed February 24, 2015, was approved by the Governor on March 5, 2015 and will be in effect 90 days from passage.
HB 2010 -- Requiring the elections of justices of the West Virginia Supreme Court of Appeals, circuit court judges, family court judges and magistrates be nonpartisan and by division. Bill was passed over the objections of the Governor on March 10, 2015 and will be in effect 90 days from passage.
Wages and Payments Issues:
SB 12 -- Relating to payment of separated employees’ outstanding wages. Bill passed March 13, 2015 and will be in effect 90 days from passage. Pending in Governor’s Office.
SB 318 -- Relating to payment of wages by employers. Bill passed March 14, 2015 (last day) and will be in effect 90 days from passage. Pending in Governor’s Office.
SB 344 -- Relating to limitations on front & back pay. Bill passed March 10, 2015 and will be in effect 90 days from passage. Pending in Governor’s Office.